Applying Blind
Secret preferences, public failures.


Peter Kirsanow

Over the next few months hundreds of thousands of high-school seniors will be applying to colleges but they’ll have absolutely no idea of their prospects for admission at a given school. Sure, college guides commonly list such things as the median GPA and SAT scores of a school’s enrollees but that information doesn’t allow applicants to effectively calculate their chances of admission. That’s because factors other than GPA and SAT scores can significantly outweigh raw academic performance in the admissions process.

College applicants, similarly, have no idea of the probability of graduating from a particular school based on the data they gain access to through the application process; although some college brochures list graduation rates, the information is practically useless in gauging a particular student’s odds of getting a degree, or, for that matter, getting a job.

Why the mystery over admissions and graduation rates? The simple answer: racial preferences. All selective schools grant powerful preferences to black and Hispanic applicants, grossly distorting admissions and graduation data in the process. In fact, at some schools preferred minorities are up to 200 times more likely to be admitted than similarly-situated, non-preferred students. At some schools, the fact that an applicant is black or Hispanic has an impact on likelihood of admission similar to a perfect SAT score. Beyond a certain (often minimal) level of competence, being a preferred minority all but guarantees admission.

But, college administrators don’t want the public to know that. Despite all of its praise for diversity and its ostensible benefits, the academy goes to great lengths to make sure no one sees how the diversity sausage is made.

The consequences of this secrecy are devastating. Last week, the U.S. Commission on Civil Rights issued a report on affirmative action in law schools. Much of the report focused on the research of UCLA Law School Professor Richard Sander concerning the “mismatch effect” produced by racial preferences in law school admissions. Sander notes that the academic credentials of minority students admitted due to preferences, often don’t match the academic demands of schools striving to populate their classrooms with “meaningful numbers” of black and Hispanic students.

The problem is that there aren’t enough competitive black and Hispanic applicants to go around. As University of Texas law professor Lino Graglia noted a few years ago, the median GPA and LSAT percentile for students admitted to the country’s elite law schools were 3.8 and 98 respectively. At the time fewer than 20 black college students in the entire country met those standards. One elite law school, University of Michigan, has about 30 black law students in each entering class. Michigan alone could snap up all of the black applicants at the median and still have 10 seats left to fill. This means that in order to achieve “diversity” Michigan and other first-tier law schools must dig well below the median to fill the remaining seats.

This creates what Sander calls the “cascade effect.” Using preferences, the top schools vacuum up all of the black and Hispanic applicants at the median as well as those one or two strata below — leaving no black or Hispanic applicants who meet the unalloyed standards of the second tier law schools. These schools must, in turn, employ powerful preferences to fill diversity seats with black and Hispanic applicants from the next level (or two) below, and so on. The result is that preferred minorities aren’t nearly as competitive as their white and Asian classmates. Abysmal graduation and bar passage rates follow. And the pattern replicates itself in the job market. Half of black law students are in the bottom 10% of their respective classes. Blacks are two-and-a-half times as likely as whites never to graduate. Nearly half of black law school matriculants never become lawyers.

Stonewalling Elites

As my colleague Gail Heriot noted in the Wall Street Journal last week, Professor Sander’s recent attempt to get bar passage data, disaggregated by race, for follow-up research met tough resistance. (Disclosure: I was among several commissioners who sent letters supporting release of the data.) The Society of American Law Teachers cautioned the California State Bar’s Committee of Examiners against disclosure. Other supporters of racial preferences also argued against disclosure. Not surprisingly, the Committee of Bar Examiners refused to relinquish the data.

This isn’t unusual. Shortly after the Supreme Court issued Grutter v. Bollinger, the 2003 University of Michigan affirmative action case that sanctioned the use of race in the college admissions process, I sent a survey to 40 schools requesting data concerning their respective racial preference programs. Not one school complied. The National Association of Scholars and the Center for Equal Opportunity also have sought college affirmative action data. Colleges have been less than enthusiastic about responding.

Last year Rep. Steven King (R., Iowa) introduced a bill requiring transparency in the college admissions process. King’s bill would’ve required a college to disclose, among other things, whether it uses preferences, the extent to which preferences are weighted and whether the school employs racial/ethnic “goals and timetables”. The bill was defeated.

Democrats uniformly and steadfastly opposed the bill. During the floor debate Rep. George Miller (D., Calif.) actually claimed that the bill was unnecessary because colleges would gladly supply the information sought by the bill.

In reality, Miller’s claim is laughable. Jack Bauer couldn’t pry that information from college administrators.

But in theory, Miller should be right. Most colleges proudly trumpet their devotion to diversity. They should be eager to highlight the extent to which diversity is promoted. After all, Grutter permits elite colleges to discriminate on the basis of race and ethnicity. So why not describe how it’s done?

The Twin Shams of Affirmative Action

The reason for this concealment is that the information sought by Sander and King would expose two giant shams.

The first sham is that colleges are actually complying with Grutter. The Supreme Court allows admissions offices to use race/ethnicity as a flexible “plus” — a feather on the admissions scale — provided it’s but one of many factors used to assess an applicant. In practice, the right race/ethnicity has the weight of an anvil. At many elite schools the median GPA differential between non-preferred and preferred admitted students is a full point; the median SAT differential can exceed 200 points. Thus, the data likely would reveal that few schools are actually complying with Grutter.

The second sham is that affirmative action is, at worst, a harmless if misguided exercise in liberal utopianism. In truth, it’s a policy damaging to the career and financial prospects of preferred minorities. In fact, Sander’s study shows that affirmative action has resulted in appreciably fewer black lawyers than would be produced by race-neutral admissions policies. Although many might say that any policy that produces fewer lawyers is a good thing, the damage to individual students is real. The Chicago Law Bulletin reports that Professor Sander found that a large number of preferentially admitted minority law students who had failed the bar exam had incurred significant law school debt—up to $160,000 in some cases. Unfortunately, the moral preening of elites comes at a price usually paid by others.

Let the Sun Shine In

The U.S. Civil Rights Commission report cited above makes several recommendations designed to increase transparency in law school admissions, including a recommendation that Congress pass legislation requiring law schools that receive federal funds disclose data on the extent to which race is used in admissions.(Commissioner Heriot’s concurrence to the report should be required reading at all law schools).

That’s a good start, but colleges and graduate schools should provide even more information to help students apply to schools likely to admit them and from which they’re likely to graduate. The answers to the following would help:

1. Does your school discriminate on the basis of race or ethnicity?

2. Which races/ethnicities are preferred and which are not?

3. What is the median GPA/SAT of your applicant pool, disaggregated by race?

4. What is the median GPA/SAT of admittees from non-preferred racial/ethnic groups? From preferred racial/ethnic groups?

5. What are your school’s 5-year graduation rates, disaggregated by race?

In addition, the Grutter rationale suggests that colleges should be able to supply answers to the following:

6. Did your school consider race-neutral alternatives to your racially discriminatory policy? If so, which ones? Why were they rejected?

7. What are the educational benefits the school allegedly derives from a diverse student body? How did the school make that assessment? What’s the evidence of the benefits?

8. What’s your school’s minority population? What is your school’s critical mass of preferred minorities? How did you arrive at that figure? What data support your determination?

9. When will you sunset your racially discriminatory policies?

Federal, state and local governments require banks, insurers, contractors and scores of others to provide copious racial data. There’s no reason colleges should be exempt. It’s a small price to pay for the privilege of discriminating on the basis of race, scamming poorly prepared students into paying tuition to an institution unlikely to confer a degree, stoking racial resentment and perpetuating stereotypes.

Peter Kirsanow is a member of the National Labor Relations Board. He also is a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the positions of either organization.